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MUSINGS: Of PSVs, dress codes and vicarious liability

Sun, 01/06/2019 - 1:58am

By:

Jeff Cumberbatch

I was especially intrigued this week by the action of the PSV employees to strike against commuters because of their dissatisfaction with being compelled to wear uniforms emblazoned with the logo of the Barbados Transport Authority rather than that of the owners of the vehicles, and the ensuing discussion in which I believed I heard, though I might be mistaken, that the owners of these vehicles are mot responsible for the wrongful acts committed by the workers on them.

These two issues raise interesting points for legal study; first; the statal authority’s entitlement to prescribe the form of dress that a worker engaged in a private contract of employment under its regulation should adopt and, second; the notion of an employer’s liability for the wrongs of those in its employ, the common law doctrine of vicarious liability that is currently undergoing what may be justifiably described as seismic change.

As for the first, we may take as our point of departure that what one chooses to wear is essentially an exercise of his or her constitutionally guaranteed freedom of expression, although it is entirely possible individually to cede away this right by contract or some other mechanism. Indeed, the opening words of the relevant provision in our Constitution makes this clear-
“Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression…” (emphasis mine)

Most frequently, this freedom of expression in respect of dress is conceded in the context of schools or other kindred organizations and of employment where the state, school authority or the employer competently determines what would be considered acceptable dress while engaged in the contracted activity.

It may also be subject to the demands of the occupier of the premises upon which the individual proposes to enter lawfully. And while some of these conditions may be questioned for their correlation with common sense such as the prohibitions on arm holed dresses for women and shorts for men in some places, it is perfectly within the remit of the occupier, whether the state or a private entity, to determine the conditions of entry onto their premises. And, of course, there may be constitutional legislative prohibition on certain forms of dress may be gleaned from the recent Caribbean Court of Justice ruling in the Guyanese cross- dressing case

According to the state action doctrine however, the constitutional fundamental rights are ordinarily enforceable against the state or state entities only, so that at first blush, unless the state or the entity falls within the role of school authority, employer or occupier or unless there is appropriate legislation, the state and its corresponding agents should have little authority to determine what an individual chooses to wear at any time.

Moreover, the unilateral requirement for the PSV workers to wear the logo of the Authority would seem impermissibly to override the managerial prerogative of the owner/employer of the PSV operation to determine the required mode of dress of its employees. One could scarcely conceive of the Fair Trading Commission mandating the uniform of the workers of the telecom company or of the BWA or of the Financial Services Commission directing what the employee of any given credit union should wear.
On these bases, the Transport Authority would be required to show that its mandate is a proportionate response or, as the Constitution puts it, that it is reasonably required in the circumstances. The
objective of bringing some order to this notoriously intractable sector is doubtless a laudable one, but reasonableness in this context would demand that the Authority should infringe as little as possible on the fundamental right of the employee and, arguably, in this case, the employer.

The notoriety of the sector would naturally make it difficult for the commuting public to see any virtue at all in it, but on this occasion I do believe that it has a valid point. If the owners are of a similar view, I do not believe that the door is or should be closed for further collective negotiation and compromise on the matter.

Vicarious Liability
As I stated above, I thought that I heard at some time last week that the PSV owner was not to be considered liable (vicariously) for the wrongful acts of the workers on his, her, or its vehicle. If so, this would be a gross misstatement of the current state of that area of law that most agree is undergoing a sea change. I do not intend to bore my readers on the first Sunday of 2019 with a prolix disquisition of the principles in this area, but suffice it to say that here the title of Chinua Achebe’s classic novel, “Things Fall Apart”, aptly describes the current state of affairs.

For instance, where once the law required for the mainly tortious liability of the worker a relationship of employer and employee, the common law has now stretched the law so as to include those in a relationship “akin to employment”, a category that has so far been held to include that between (i) a prisoner who negligently injured a kitchen assistant on the prison kitchen and the Ministry of Justice, (ii) a doctor in private medical practice and the bank that hired him to carry out medical examinations of potential employees and (iii) even a local council and foster parents who physically and sexually abused a child placed in their care by the council. Given these holdings, it would arguably be an easy step to form an opinion that a PSV owner and the driver or conductor are engaged at least in a relationship “akin to employment”… if not the real thing.

Second, there has also been a broadening of the principles governing whether an act occurs, as is required, in the course of employment. Now, the law requires merely a sufficiently close connection between the wrongful act and the employment for liability to exist. Again here, it is arguably difficult to conceive of any act connected with the operation of the vehicle by those who work on it that would
not fall within this notion.